Brown nominee won’t be on court to hear major state pension lawsuit

Gov. Jerry Brown's nominee for the state Supreme Court apparently will not be seated in time to hear an important state pension case.

The high court announced on Nov. 8 that the case, Cal Fire Local 2881 v. Public Employment Relations Board, 2018 DJDAR 1839, would be heard on Dec. 5. The case is of intense interest to Brown as it challenges a law he signed in 2012 putting limits on pensions for state workers hired after 2013.

Six days later, Brown nominated Josh Groban, his longtime judicial appointments secretary, to fill a court seat vacant since August 2017.

This combination of events quickly prompted two questions among court-watchers. First, would Groban be seated in time to hear a case that was extremely important to his longtime boss? Second, if he was seated in time, would Groban recuse himself?

But according to the Supreme Court, there is almost no chance Groban will hear the case.

Reached on Friday, a spokesperson for the court said there was never much of a possibility that a nominee would be sped onto the court in time to hear the case. A pro tem justice has already been assigned: Thomas L. Willhite of Division Four of the 2nd District Court of Appeal. Once that happens, a justice will "contribute through completion."

Nor was the case calendared with the goal of getting a Brown appointee seated. Cases are usually chosen up to a year ahead of time and scheduled weeks before. The only way Groban might hear the case is if one side petitioned for a rehearing, but this is unlikely.

Brown referred Groban to JNE back in August for the 2nd District Court of Appeal.

It was widely speculated this might have been an effort to help speed Groban through a Supreme Court evaluation at a later date while he finished his work helping Brown stock the state judiciary.

"I would assume they wouldn't throw out the work they'd already done," said David S. Ettinger, of counsel and Horvitz & Levy LLP and author of the At the Lectern blog.

But Ettinger said the high court evaluation was always going to have to be a separate process. In a blog post earlier this month, he wrote it had taken Brown's three previous appointments between 28 and 37 days to get through the process.

He predicted, correctly, that Brown would make his choice before Thanksgiving in order to assure the nominee was confirmed before he leaves office on Jan. 7.

The lead plaintiff's firm in the case, Messing Adam & Jasmine LLP, posted a message on its website on Thursday saying "a number of commentators and journalists have sought our view on whether Groban should recuse himself."

This would depend on Groban's "level of involvement in advising" the governor about the litigation, they said.

"CAL FIRE Local 2881 v. CalPERS is a highly unusual case, because the Governor's Office itself, and not the Attorney General's Office, represents the State," the post added. The firm did not return calls and emails seeking comment at press time.

"I'm not really sure as an associate justice what his role would be even if he were seated," said Peter W. Saltzman, an attorney with Leonard Carder LLP who filed amicus briefs in support of the plaintiffs on behalf of several labor groups. "I don't think it will be an issue."